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Thursday, June 18, 2015

This evening at the Osgoode Society's annual general meeting, three prizes were awarded.

For the Peter Oliver Prize for the best published writing by a student, we have co-winners.

Edward Cavanagh is a PhD student in history at the University of Ottawa and a former McMurtry Fellow. Tyler Wentzell graduated in 2014 from the University of Toronto Law School.

The articles for which they were awarded the prize are:

Edward
Cavanagh, ‘Possession and Dispossession in Corporate New France,
1600-1663: Debunking a “Juridical History” and Revisiting Terra Nullius,’
2014 32 Law and History Review 97

Tyler
Wentzell, ‘The Court and the Cataracts: The Creation of the Queen
Victoria Niagara Falls Park and the Ontario Court of Appeal,’ (2014) 106
Ontario History 100

The R. Roy McMurtry Fellowship in Canadian Legal History was awarded to Elizabeth Koester.Elizabeth holds an LLB from
the University of Toronto and was a partner with McCarthys for some years.
She has returned to academe and is pursuing a doctorate at the Institute
for the History and Philosophy of Science and Technology at the University of
Toronto, where her dissertation will focus on law and eugenics in Ontario,
1900-1939.Finally, the winner of the John T. Saywell Prize in Constitutional Legal History (awarded in alternate years)is Hakeem O. Yusuf, Reader in Law and Public Policy at the University
of Strathclyde Glasgow, for his book Colonial and Post-Colonial Constitutionalism
in the Commonwealth: Peace, Order and Good Government, published by
Routledge last year. Dr. Yusuf considers the interpretation of and experience
with POGG in Canada, Australia, Nigeria and the UK itself, but the Canadian
experience is in many ways the heart of the book. By putting POGG into a
broader imperial context, Dr. Yusuf has brought new
insights to a topic that Canadian legal and constitutional historians have
studied almost obsessively.Congratulations to all four prize winners.

At this evening's meeting of the board of directors of the Osgoode Society for Canadian Legal History, Justice Robert J. Sharpe of the Ontario Court of Appeal was elected president of the Society.

While R. Roy McMurtry, the founder and of the society and its long-serving president, has decided to step down, he will not be going very far, as he will remain on the board as a director. We are fortunate that we will continue to benefit from his wealth of experience and talent.

We are also extremely glad that Bob Sharpe has agreed to succeed him. Not only is Bob a distinguished judge and former dean of the U of T law school, he is also one of the Society's most prolific and successful authors. His books for the society include:

The Lazier Murder: Prince Edward County, 1884 (Toronto: The Osgoode Society and University of Toronto Press, 2011), Winner of the Fred Landon Award of the Ontario Historical Association, 2013.The Last Day, The Last Hour: The Currie Libel Trial (Toronto: The Osgoode Society and University of Toronto Press, second edition, 2009),The Persons Case: The Origins and Legacy of the Fight for Legal Personhood (Toronto: The Osgoode Society and University of Toronto Press, 2007), (with Patricia McMahon) Winner of the Canadian Law and Society Association Book Prize, 2007.Brian Dickson: A Judge's Journey (Toronto: The Osgoode Society and University of Toronto Press, 2003), (with Kent Roach). Winner of the John Wesley Dafoe Book Prize, 2003.

Tuesday, June 9, 2015

Michel Morin of the University of Montreal has posted "Ownership and Indigenous Territories in New France (1603-1760)" on SSRN. The article appears in Jose Vicente Serrao, Barabara Direito, Eugenia Rodriguez and Susana Munch Miranda (eds), Property Rights, Land and Territory in the European Overseas Empires, Lisbon, CEHC-IUL, 2014.Here's the abstract:In North-Eastern America, the pre-Columbian origin of Indigenous familial territories has remained controversial among Anthropologists, like the possibility that Algonquian peoples devised wildlife conservation measures by themselves. During the 17th century, however, in accordance with concepts found in the literature on natural law and the law of nations, the French recognized that Indigenous Nations had national territories and controlled access to areas over which they exercised a form of collective ownership; the use of lands was regulated by chiefs. With time, the King’s representatives convinced their allies to call themselves “brothers” and to grant to each other a mutual right of hunting over their lands. Nonetheless, they were cognizant of well-defined hunting “districts” exploited under the direction of the chief of a familial band. Members from another band or strangers had to obtain the permission to hunt there, though occasional incursions were accepted. Starting in 1660, conservation measures were observed in the Great Lakes and Lake Champlain area, but in the 18th century, they seemed unknown on the North Coast of the Saint Lawrence River. It seems unlikely, however, that Indigenous persons did not have enough information to devise such measures by themselves. Overall, national territorial limits and well-defined hunting districts seem to have had an Indigenous rather than a French origin.

This book chapter forms part of a larger collection of reflections on the November 1981 patriation negotiations leading to the passage of the Constitution Act, 1982. A legal history of Canadian constitutional thought, it connects patriation to the powerful forces of constitutional nationalism as they emerged in Canadian law, politics, and culture. Without an amending formula in the British North America Act, an adjudicative structure in which Britain’s Judicial Committee of the Privy Council served as Canada’s highest court, and lacking foreign policy autonomy, Canada remained tethered to Britain in ways that would become increasingly contentious. For Canada’s constitutional nationalists, the continued British constitutional role served as an intolerable expression of the Dominion’s infantilized status and a barrier to Canada’s abilities to develop policies, institutions, and politics that were reflective of the desires of Canadians. While the forces of constitutional nationalism triumphed in Canada's attainment of foreign policy autonomy, the “supremacy” of the Supreme Court, and a domestic constitutional amending formula, ultimately, the patriation of 1982 resolved fewer problems than constitutional nationalists might have hoped and generated several others in the bargain

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